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A Vaccination Compliance Cauldron: Ten States Insist Federal Covid-19 Healthcare Providers’ Mandate Is Constitutionally, Statutorily, and Procedurally Unsound

Missouri, et al. v. Biden, et al., No. 21-cv-01329 (E.D. Mo.). Complaint filed November 20, 2021.

Ten states have joined in challenging the action of the United States Department of Health and Human Services (HHS), Centers for Medicare and Medicaid Services (CMS) in promulgating an Interim Final Rule with Comment Period (IFC) that conditions health care providers’ receipt of federal funding and reimbursement on employee or contractor vaccination against COVID-19.  

Providers and Employees Threatened. Health care providers whose employees fail to comply with the federally mandated demand that all health care workers be vaccinated against Covid-19 may lose federal funding,   As vaccination refusal will threaten employer compliance with the federal measure, unvaccinated employees may lose their jobs.

Exacerbation, Not Mitigation.  The states submit that this sweeping federal incursion on health care administration threatens to exacerbate an already extant crisis in health care provision, which crisis only deepened during the COVID-19 pandemic, forcing states to undertake drastic measures to ameliorate the deadly synergies of two crises which individually would have sufficed to cause health care services to crater. 

          To the extant shortage of workers and threat of harm from viral infection the federal government has added a compliance burden that, the states contend, violates the interests of the states, the healthcare providers and entities within the states, and the healthcare workers who must submit to vaccination or face termination. 

State Standing.  Having brought their complaint in the United States District Court for the Eastern District of Missouri, the states and their attorneys general assert standing premised on exercise of parens patriae powers or statutory authorizations. 

Effective Immediately.  The Interim Final Rule, also called  the CMS vaccine mandate, became effective on publication on publication in the Federal Register on November 5th.  Its protocol demands at least partial vaccination compliance by the first week of December, a deadline that only compounds the problems the rule has caused, the states note.  

          Most significantly, the states argue, the Interim Final Rule is not merely factually detrimental to the provision of health care services, the rule itself and the manner in which the rule was crafted is in violation of central components of the Administrative Procedures Act (APA) and the United States Constitution.

The CMS Vaccine Mandate Makes Matters Worse.  The complaining states assert that the sweeping federal incursion on providers’ rights will exacerbate and extant shortage of workers.  The federal scheme is an unconstitutional abridgment of rights traditionally reserved to the states, and is not only legally flawed but also is, as a practical matter, administratively disastrous, as the health care needs of densely populated urban areas are markedly varied from those of rural settings.  

The CMS vaccine mandate must be set aside.  The states ask that the federal court declare the CMS vaccine rule be declared invalid constitutionally and in violation of the Administrative Procedures Act (APA) and other statutes, and that its enforcement be enjoined.

Not an overnight development.  Healthcare workforce shortages predate the COVID-19 pandemic by decades, the states recount.  Nursing shortages, already critical, have been made all the more so by the demands for urgent and other care precipitated by the pandemic. Many nursing professionals feel they cannot continue to work as they have been.  Many have been attracted to positions offering better working conditions are higher compensation. 

          Staffing shortages threaten the capacity of hospitals to administer care.  To address pandemic care needs, states relaxed standards for the provision of services, permitted workers to work without vaccination, and expanded telehealth services.

          The states are critical of the implementation of the administrative rule per see where doing so represents and Executive Branch about face from federal non-involvement in vaccination to a nationwide push for COVID-19 vaccination compliance that threatens workers with loss of employment and provider entities with loss of available federal funding.   

Reaching beyond providers.  Where health care workers cannot work, providers will be unable to provide services, and the patient public will be denied care.  Each of these outcomes, the states observe, is contrary to sound policies of health care delivery.

A diverse panoply of providers under a single rubric.   There are fifteen categories of Medicare and Medicaid providers, encompassing urban and rural clinics, hospitals, long-term care facilities, and home health agencies. 

          CMS reports that nearly all hospitals within the United States are connected in some measure to Medicare and Medicaid.  Although CMS has recognized the diverse purposes and practices of these categories of providers and suppliers, CMS has embroidered on all covered providers and suppliers the measures applicable to long-term care facilities, the states observe. 

          Moreover, CMS appears to recognize the adverse consequences of the vaccine mandate:  failure to comply will threaten health care workers with loss of employment, which in turn will deepen an already critical worker shortage, which in turn will impact access to care.

No comment.  The states point out that there has never before been a federal vaccination mandate, and that the newly-effective rule is unsound on multiple grounds.  The states notes that CMS abandoned the comment period ordinarily required for rules of the magnitude of the unprecedented healthcare vaccine mandate.  Moreover, CMS has failed to locate with accuracy its authority to promulgate the vaccine mandate.

Unauthorized rule-making. The states argue that there is no statutory authority for the CMS vaccine mandate, and that none of the authorities cited by the CMS as authorizing the mandate do so.  This legally unsupported rule will cause the states great economic harm, particularly as states will not only be threatened with loss of federal resources but the states’ own administrative resources have been conscripted to serve the federal government. 

Hindsight unavailing.  The states submit that the CMS has relied on post-hoc rationalizations to support the rule, an impermissible approach which renders the measure arbitrary, capricious, and not in accordance with law. 

Constitutionally intrusive.  The states argue that compulsory vaccination is traditionally a power reserved to the states.  The federal expansion of power over the states violates the Tenth Amendment, the states submit.

Doctrinally unsound.  The states argue that the CMS vaccine mandate is unsound as it is a measure of national breadth and depth that is not supported by clear Congressional directive, and thus runs afoul of the major questions doctrine.   Similarly, the co of a Congressional articulation of an intelligible guiding principle, the CMS vaccine rule violates principles of non-delegation.

Outside professional bounds.  The states observe that the CMS vaccine mandate is precluded by the Social Security Act, which forbids supervision or control over the practice and provision of medicine and medical services.

Procedurally flawed.  The states submit that the Administrative Procedures Act (APA) is not inaptly named, and that no sound excuse exists for CMS’ failure to adhere to notice and comment procedures which permit interested persons’ participation in administrative processes.  

          CMS not only failed to adhere to these processes but its rule became effective on publication with initial compliance to be completed within thirty days.  Additionally, CMS failed to comply with the sixty-day pre-publication requirement of the Social Security Act.  

Input not sought.  CMS failed to confer with the states concerning the mandate as it is required to do.

Unconstitutional conditions imposed.   The federal government may not impose conditions on funding unrelated to the programs impacted or without notice to the states that vaccination would be required in order to obtain federal funds.  

State resources conscripted.  In enacting measures which threaten providers’ finances through demands on employees, the states observe that is is an infringement on state powers for the federal government to demand that state administrative resources be expended in service of federal aims.

Declaratory and injunctive relief sought: looking forward. The states have requested declaratory and injunctive relief which would nullify the CMS vaccine mandate and prohibit its enforcement.  At this writing the federal court has not issued any orders relating to the case, although in light of the abbreviated time frame for compliance with the CMS vaccine mandate, it is anticipated that there will be activity related to this case soon.  

Missouri, et al. v. Biden, et al., No. 21-cv-01329 (E.D. Mo.) Complaint






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Having Twice Failed to Uproot the Stay that Keeps the CDC Eviction Moratorium in Place, Realtors Association Again Seeks Emergency Relief in the U.S. Supreme Court

Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, No. 21A23.  Application to vacate stay submitted on August 20, 2021.  Government to respond by noon on August 23, 2021.

Applicants Alabama Association of Realtors have filed in the United States Supreme Court an application for emergency relief which would vacate the U.S. District Court’s May 14, 2021 stay of its May 5th order vacating the Center for Disease Control (CDC) moratorium on evictions.

The emergency application was submitted the same day that the United States Court of Appeals for the District of Columbia Circuit denied relief from the stay for the second time.

Applicants argue that not only has the United States District Court for the District of Columbia found the CDC eviction moratoria to be unconstitutional, but also that the executive branch has admitted this to be true, but has nonetheless encouraged litigation as a delay tactic in the hope of distributing billions in rental assistance monies through the states.  

When the initial series of eviction orders lapsed on July 31, 2021, Congress failed to specifically authorize the CDC to exercise the power that it has, which legislative action Associate Justice Kavanaugh opined would be needed going forward when he denied review only because the government promised the Court that the eviction orders would end on July 31, 2021.  As this was clearly not the case, relief is now warranted, the applicants submit.

Permitting the stay to remain in place would undermine confidence in the federal government internally and in the eyes of the nation, as it would allow legislative inaction to promote admittedly unconstitutional administrative action and let the Court know its views are of no consequence.

The ongoing presence of a federal moratorium represents both an assault on the integrity of the system of government itself but also a tectonic shift in the exercise of powers affecting the rights and interests of property owners.  The eviction moratorium has been promulgated by a sovereign which is immune from suit and which will resist takings actions, provides benefits to those who are admittedly judgement-proof, and criminalizes landlords’ actions to protect their property through eviction proceedings.  Any financial benefit, in the form of rental assistance, has been lost in bogs of state bureaucracies charged with distributing the funds.

The realtors association argues that the same factors that warranted emergency relief that were present before are present now and then some.  Any reliance on ‘changed conditions’ manifested by the Delta variant of the Covid-19 virus is misplaced, as the government was aware of the Delta variant when it permitted the CDC order to lapse on July 31, 2021, and the harms predicted from the variant have failed to materialize.

The applicants note that the idea that money damages will make landlords whole is not supported in law or fact.  The Administrative Procedures Act does not permit an award of money damages, and the costs of compliance with an unlawful regulatory regimen are incapable of being fairly compensated. 

 

Alabama Association of Realtors, et al. v. HHS, No. 21A23 Application for Emergency Relief August 20, 2021

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The Constitution Is Not Under Quarantine: U.S. Supreme Court Enjoins New York’s Pandemic Restrictions on Religious Gatherings

Roman Catholic Diocese of Brooklyn v. Cuomo, No 20A87; Agudath Israel of America, et al. v. Cuomo, No. 20A90, 592 U.S.  _____. Injunctions pending appeal entered November 25, 2020.

The Supreme Court has enjoined the operation of New York’s executive orders limiting religious gatherings pending resolution of Free Exercise challenges in the Second Circuit or regulation of any petition for certiorari.  The court’s ostensibly per curiam opinion is accompanied by two separate concurrences and three separate dissents.

Executive Orders concerning public health have been issued and been modified and remain in effect or subject to further modification since the inception of the COVID-19 pandemic.  These emergency measures, in board brush, are an admixture of geographic zones of danger combined with purportedly correlative restraints on public gatherings for secular or religious purposes.  The measures may be enhanced or relaxed as the perception of prevalence or risk changes. 

Both Orthodox Jewish and Catholic organizations have challenged the imposition of restraints on attendance at religious services in New York during the Covid-19 pandemic as violative of the  Free Exercise Clause of the First Amendment of the United States Constitution.  The restrictions apply to the religious entities more harshly than the more liberal constraints on ‘essential’ or commercial entities, they have argued.  The measures have no bearing on reality, the petitioners submit, as there is no reason for limiting the numbers of those who may attend services to an inordinately small number where in fact churches and synagogues have the capacity to accommodate hundreds.  

There is no question of compliance and there have been no known incidents of illness relating to the operation of the synagogues and services. 

Both petitioners were denied relief in the district and appellate courts.  Decision on the merits in the Second Circuit awaits briefing and argument in December.

Immediately after petitions were filed in the United States Supreme Court, the Governor relaxed restraints that had applied.  

The Governor has argued that the pandemic restrictions favor churches and that no relief is necessary as the measures complained of are no longer in effect.

The Supreme Court has disagreed.  

The Supreme Court has concluded that strict scrutiny must be applied to the emergency measures, and that these measures cannot withstand this scrutiny, as there is no doubt of the impact on religion and no support for the capacity of the measures to serve the government’s ends.  Because the measures recently relaxed may be just as suddenly enhanced, the threats to the religious groups remain real and palpable.  As the groups have established a likelihood of success on the merits, and as the harm to first amendment interests is present and ongoing, relief pending review in the Second Circuit is appropriate. 

The Court’s per curiam opinion makes plain that the latitude accorded the political branches to act to ensure public health during crises is not unlimited:  “Even in a pandemic, the Constitution cannot be put away and forgotten,” particularly where the restrictions in question strike at core constitutional concerns.  Slip Op. at pp. 5-6.  

Justice Gorsuch wrote separately to stress the vitality of the Constitution during the pandemic, stressing that “Government is not free to disregard the First amendment in times of crisis.”  Slip. Gorsuch dissent  at 2.  The particular orders in issue, subject by their nature to strict scrutiny analysis, merit the observation that public health has uncannily allied with secular convenience.  If the Constitution  has “taken a holiday” during the pandemic, this may not be permitted to become “a sabbatical.”  Gorsuch dissent at 3.  

Justice Gorsuch takes particular aim at the Supreme Court’s and the lower courts’ reliance on Jacobson v. Massachusetts, 197 U.S. 11  (1905 ) as support for plenary emergency powers during crises that must be accorded judicial deference.  Jacobson involved different rights and offered the affected a range of options, which the restrictions upon churches do not.  As the current restrictions involve core constitutional concerns, Jacobson does not control.  Even if deference is due the political branches, all emergency measures must measure up to Constitutional commands.  

Justice Kavanaugh wrote a separate concurrence, noting that New York’s restrictions are more stringent than those of other locations.  Once discriminatory measures are imposed, it is not good enough to not that they apply to others, he observed.  Once a favored class is created, the state must say why those who are less favored are excluded.  

Justice Kavanaugh takes a programmatic view of the Court’s offer of relief.  If the recently relaxed regulations are abandoned, the petitioners will be protected but if there is not change there is no impact.  The petitioners will at least be permitted some clarity during the pending appellate process.

Chief Justice Roberts has dissented, opining that there is no injunctive relief required where the challenged measures are no longer in effect.  If that were to change the petitioners could return to the court. An order instructing the governor not to do what is not being done cannot be said to meet the standards required for awarding injunctive relief.  

Justice Breyer, with Justices Sotomayor and Kagan, have joined in dissent to emphasize that there is no present need for intervention and that if intervention was needed, the parties could return and the need for relief could be promptly assessed and addressed.  The justices opine that it is not clear that the restrictions violate the Free Exercise clause and that the interests of public health  and  safety must be balanced against religion.  The courts have and must continue to recognize that assessments and interventions affecting public health crises, with their concomitant likely needs for prompt action, are the province of the political branches.  

Justice Sotomayor, with Justice Kagan, wrote a separate dissent, expressing fear that further suffering may follow from the Supreme Court’s order.  The worry is that success of the stringent measures has rendered them inapplicable, yet because of the court’s intervention, the more stringent measures may not be revived if they are needed. In Justice Sotomayor’s view, New York’s actions fall comfortably within the confines of prior analyses that hold that a law is not necessarily constitutionally infirm if it impacts religion provided there is reasonable parity with secular restrictions.  

Here, where it has been shown that New York has preferred religious gatherings over others, neither intervention nor heightened scrutiny appears apt, the justice offers.

Disregarding or second guessing the governor with respect to matters of public health is a “deadly game,” in this dissenting view.  And the mere reference to religion within the measures will not suffice to make them discriminatory.  Any statement by the governor mentioning a particular religion likewise cannot establish discrimination, where statements by the President about a religious or ethnic group were set aside by the Court in reviewing the neutrality of travel measures in their entirety.  

Roman Catholic Diocese of Brooklyn v. Cuomo 20A87 Order November 25, 2020

Agudath Israel et al. v. Cuomo 20A90 Order November 25, 2020